The Agency Workers Directive (the “Directive”) was adopted by the European Parliament on 19 November 2008. The Directive seeks to guarantee agency workers equal pay and conditions of employment compared to those employed directly in the end user business performing similar work. The Directive further aims to recognise temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working conditions.
The principle of equal treatment encompasses the basic working and employment conditions of temporary agency workers which shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.
Though it was proposed as far back as 2002, various Member States delayed its enactment due to failure to reach agreement on when such rights would be triggered. Member States can exclude from the Directive’s protection, national temporary workers who have a permanent contract which ensures that they are still paid even when they are not on a temporary posting.
Under the terms of the Directive, the principle of equal treatment should be applied from day one of employment. Therefore, any treatment at national level of temporary agency workers which seeks to limit this principle (for objective reasons), must be agreed by the social partners, either through collective bargaining or through social partnership agreements concluded at national level. For example, in the United Kingdom, the social partners agreed in May that the equal treatment principles of the Directive would apply to agency workers only after 12 weeks of employment. However, for the rest of the EU, who have not already agreed any such derogation at national level, it seems unlikely that trade unions will agree to a reduction in their members rights, when the default position under the Directive is that its provisions apply from day one.
All EU Member States will have until 5 December 2011 to transpose the Directive.